28 Ala. 536 | Ala. | 1856
We think the fair construction of this bill of exceptions is, that the judgment by default was predicated upon the facts set forth in the bill of exceptions; and it has been so treated in the argument of counsel. At the time when the judgment by default was rendered, the defendant’s pleas were on file, and he was in court, by his attorneys, opposing it; and the judgment was therefore erroneous, unless it was authorized by our statute and rules of practice.
Sections 2258, 2259, and 2260 of the Code prescribe the time within which the defendant is required to plead. The rules of practice contain the following provisions: “ Defaults may be entered on the docket in vacation, which shall relate to the preceding term, and advantage thereof may be claimed at the next term.” “ After a default has been duly entered, the party claiming the benefit thereof shall not be bound to receive any .plea or pleading of the party so'in default.”— Appendix to the Code, p. 714, §§ 9, 10.
Under the sections of the Code referred to, and the rules of practice above copied, a plaintiff may, during vacation, have the default of the defendant, who has not pleaded, (the time' for him to plead having passed,) entered upon the docket; and he will not be bound, without an order of court, to receive a plea at the next term of the court, provided he then claims the advantage of the default entered in vacation. If, then, the default of the defendant in this case was entered in the manner contemplated by the rules of practice, it is clear that the court did not err in rendering the judgment by default; for, at the time when it is alleged default was claimed, the defendant had not pleaded, and the time for him to plead, even as extended by an order of court, had passed. If the default was nob entered in vacation, as contemplated in the rules of practice, then the judgment by default was erroneous; because the defendant pleaded, before the judgment by default was rendered. We think that the .effect of the statute and rules of practice, when construed in reference to each other, is, that a defendant may plead at any time before the default is entered; and, on the other hand, the
That which is considered the entry of a default in vacation, is a writing mpon the docket of the cause of the preceding term, in the following words: “ Plaintiff claims judgment against defendant for want of a plea, Nov. 7, 1854”, which is signed by the counsel of the plaintiff, and attested by the clerk. Conceding, for the purpose of the argument, that the entry upon the docket, which is copied above, is, although signed by the plaintiff's attorneys, made the act of the clerk by his attestation of it, it is clear that the words themselves do not amount to the entry of a default. The entry is not that a default had taken place, or that the defendant had failed to plead, but that plaintiff claimed judgment for want of a plea. The entry is a statement of the claim set up by the plaintiff, and not- of the fact that there existed a default. It is true that it was shown to the court, at the time when the judgment’ by default was rendered, that the defendant had hot pleaded when the entry was made upon the docket; but that can not sustain the judgment, because it is only the fact that an entry of the default was made before the defendant had pleaded which will authorize a judgment by default after pleas are filed. The entire proceeding is statutory, and must be in strict conformity to the statute and rules of practice, under which it is had. — Curry v. Bank of Mobile, 8 Porter, 372.
After the judgment by default was rendered, a writ of inquiry was executed, and many questions upon the introduction of evidence were raised, and several questions were also raised upon a motion in arrest of judgment; upon all of which assignments of error are based. We are not at all certain that, upon another trial of the cause, the same questions will arise; and we do not now deem it necessary, or proper, to pass upon them. The pleas of the defendant were not passed upon by the court below, and were not regarded or treated as pleas in the cause. The sufficiency of those pleas is therefore not a question before us.
Por the error of the court below in rendering the judgment , by default, its judgment is reversed,- and the cause is remanded.